Employment Law Update – January 2021

GENDER REASSIGNMENT DISCRIMINATION

In the case of Taylor v Jaguar Land Rover Ltd, the Tribunal found that a gender-fluid person in the process of transitioning from a man to a woman, but who had no intention of having medical treatment or reassignment surgery, could still have the protected characteristic of gender reassignment. 

Facts

Ms Taylor was an engineer for Jaguar and told her managers in 2017 that she was transitioning from male to female. When she started to attend her workplace in female attire, she began to suffer harassment and discrimination. This led to her resignation and she then complained of various forms of discrimination on the grounds of gender reassignment and thus constructive dismissal.

Decision

The Tribunal found that Ms Taylor’s colleagues had openly ridiculed her appearance and referred to her as “it” as well as asking her whether she was going to “have her bits chopped off”, and that these were clear examples of mistreatment. Jaguar argued that Ms Taylor was not within the protected characteristic of “gender reassignment” because she often described herself as “non-binary” or “gender fluid”.

The Tribunal found that Ms Taylor was protected as she was on a clear “journey” of transition which didn’t require a medical procedure. Therefore, the Claimant succeeded in her claims of discrimination, harassment and constructive dismissal. 

Comment

This case demonstrates to employers that employees who identify as gender fluid or non-binary are likely to have the protected characteristic of “gender reassignment”, regardless of whether or not they have undergone (or intend to undergo) a medical process. Employers who do not address and prevent discriminatory treatment, bullying and harassment in such cases are likely to be faced with claims against them. 

MANNER IN WHICH REDUNDANCY SITUATION ARISES NOT RELEVANT 

In the case of Berkeley Catering Limited v Jackson, it was held by the Employment Appeal Tribunal (EAT) that the manner in which a redundancy situation arises does not affect whether or not a redundancy situation actually exists.

Facts

The Claimant was the Managing Director of Berkeley Catering. The company’s owner named himself CEO which lead him to deliberately undermining the Claimant’s position as Managing Director as he took full control of all management decisions and operations. Subsequently, the Claimant was dismissed by reason of redundancy on the basis that the company’s requirements for the Claimant to continue to carry out work of that nature had diminished. Consequently, this lead to the Claimant claiming unfair dismissal.

Decision

The Employment Tribunal found there was no redundancy situation. However, this was soon overturned by the EAT which held that the company had made arrangements in such a way that the need for employees to carry out the type of work which was taken over by the CEO had diminished, thus creating a redundancy situation. It was also held that the motive and conduct of the company in undermining the Claimant’s position was not relevant to the existence of the redundancy and was only relevant in identifying what the reason was for the dismissal.

Comment

This case demonstrates that the Tribunal will not  have regard to how a redundancy situation has arisen when considering whether or not a redundancy situation exists. Factors such as conduct and motive of an employer are not relevant when determining if a role is redundant. However, employers will still need to follow a fair and proper process in dismissing employees after their roles have been identified as redundant.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.